R v Senior

[2013] NZHC 1828

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-092-5703 [2013] NZHC 1828

THE QUEEN

v

TODD WALTER SENIOR

Hearing:	3 - 5 and 8 - 10 and 12 July 2013
Appearances:	J L S Shaw for Crown P J Kaye for Defendant
Judgment:	19 July 2013

JUDGMENT OF PETERS J

Solicitors:           Meredith Connell, Crown Solicitor, Auckland

Counsel:            P J Kaye, Auckland

R v SENIOR [2013] NZHC 1828 [19 July 2013]

Introduction

[1]      The defendant, Mr Senior, faced trial on 11 counts under the Misuse of Drugs

Act 1975 (“Act”).  The trial commenced on 1 July 2013.  Prior to summing up on

12 July  2013,  and  pursuant  to  s  347  Crimes  Act  1961  (“CA”),  I  discharged Mr Senior on counts 1, 2 and 5 of the indictment.   I said that my reasons would follow as they now do.

[2]      The first eight of the 11 counts against Mr Senior were charges that he, together with others, had manufactured a Class A controlled drug, being methamphetamine, that being an offence pursuant to s 6(1)(b) of the Act.  I refer to these counts as the “manufacturing counts”.   The distinction between each manufacturing count was the alleged period of, and parties to, manufacture.

[3]      The  Crown  charged  Mr Senior  as  a  party  on  the  manufacturing  counts pursuant to s 66(1)(b) CA. Accordingly, and amongst other things, the Crown had to adduce evidence that a manufacture of methamphetamine had in fact taken place and that Mr Senior had “assisted” that manufacture.

Evidence

[4]      The evidence adduced by the Crown included text messages (some of which Mr Senior sent or received), evidence of members of the Police force, expert Police and Environmental Science & Research (“ESR”) evidence and a memorandum of agreed facts. The defence elected not to call evidence.

[5]      On 9 July 2013, Crown counsel stated that the Crown accepted that there was insufficient evidence to prove that there had been a manufacture for the purposes of count 3, and that the Crown would not offer any evidence in support of that count.  I discharged Mr Senior on count 3 accordingly.

[6]      As I have said, I discharged Mr Senior on counts 1, 2 and 5 prior to summing up.  I did so of my own motion, having considered the evidence, closing addresses and additional oral submissions that the Crown made on 11 July 2013.  Ultimately,

the jury found Mr Senior guilty on counts 4, 6, 8 (these three being manufacturing counts), 9 and 10 (being, respectively, representative charges of supply and offering to supply methamphetamine).  The jury found Mr Senior not guilty on counts 7 and

11.

Reasons

[7]      There can be no dispute that a Judge has power to discharge a defendant on a charge if a properly directed jury could not convict on the evidence offered by the Crown, taking that evidence at its highest.1   In short, that is the reason I discharged Mr Senior on counts 1, 2 and 5.

Count 1

[8]      The Crown case on count 1 was that a manufacture had taken place at an address in Manurewa, Auckland.   The relevant period was between 21:25:50 on

27 January 2012 and 11:49:55 on 29 January 2012.  An ESR expert called by the Crown  said  that  there  was  evidence  that  methamphetamine  had  either  been consumed or manufactured at the Manurewa address, but she was not able to offer an opinion that it was more likely than not that manufacture had taken place.

[9]      To establish that Mr Senior was a party for the purpose of count 1, it was common ground that the Crown would need to adduce some evidence of assistance and   that   establishing  that   Mr Senior   merely  present   at   the   address   whilst methamphetamine were being manufactured would be insufficient.   The Crown submitted that it was  open to the jury to  infer such  assistance if it found  that Mr Senior was present at the Manurewa address during the relevant period.   The Crown case was that texts which Mr Senior sent during the relevant period of time provided evidence of his presence during the manufacture.  For example at 01:22:08 on  28 January 2012,  Mr  Senior sent  a  text to an  associate stating that he was

“Finishin up still got bout a hour left”.

1 R v Flyger [2001] 2 NZLR 721 (CA); Parris v Attorney-General [2004] 1 NZLR 519 (CA) at [10] –

[14] and R v Lua HC Auckland CRI-2006-092-4336, 24 April 2007 at [3] – [4].

[10]     In my view, no properly directed jury could draw an inference of assistance from a text that, taken at its highest, might be evidence from which it could be inferred Mr Senior was present at the address.

Count 2

[11]     The Crown alleged that the manufacture required for count 2 took place at an address in Takanini.

[12]     The texts relied upon by the Crown in respect of count 2 commenced at

13:40:23 on 15 February 2012 and concluded at 02:16:54 on 17 February 2012. Mr Senior was the sender or recipient of some of those texts.

[13]     The  Crown  alleged  that  Mr Senior  had  assisted  in  the  manufacture  by obtaining a  pre-cursor  material, being hypophosphorus  acid.    Mr Senior was  in communication with a third party whose cellphone number ended 4815.  Mr Senior sent texts to 4815 prior to 9.30 am on 16 February 2012, those texts indicating that Mr Senior was seeking to obtain “water”.  The Crown’s expert evidence was “water” was code for hypophosphorus acid.

[14]     A text from 4815 to Mr Senior at 12:18:04 on 16 February 2012 was to the effect that person had for sale what Mr Senior sought.  A subsequent text from the same number to Mr Senior shortly before 1 pm was to the effect that the person who had those items for sale could not make any transaction “til afta 5” and concluded by saying that they would text Mr Senior “b4 5.30”, to which Mr Senior replied “Ok” at

13:38:47.

[15]     There was no evidence of any subsequent texts between Mr Senior and 4815 in respect of count 2, and there was no evidence of any subsequent communication between Mr Senior and his associates as to Mr Senior’s possession of, or access to, the product.  There was also no reference to Mr Senior in any text that his associates exchanged in respect of count 2.

[16]     Some 10 hours after Mr Senior’s “Ok” text to 4815, Mr Senior’s associate, Mr Kupkovic, sent a text to another associate and asked whether “u want to come

down to work bro or u want to stay home” to which the associate replied at 23:54:43

that he would “be there soon”.

[17]     The Crown submitted that the jury could draw an inference that the “work” referred to was the manufacture of methamphetamine relevant to count 2 and that Mr Senior must have obtained the pre-cursor and delivered it to one of his associates.

[18]     Taking the evidence that the Crown relied on for count 2 at its highest, I took the view that no properly directed jury could infer that Mr Senior had assisted in any manufacture that may have taken place.

Count 5

[19]     The Crown alleged that the manufacture required for count 5 occurred at an address in Clendon Park.  The Crown relied on text messages between 11:22:45 and

18:04:32  on  3 April  2012.     These  included  texts  between  Mr Kupkovic  and Mr Senior from which a jury could infer that Mr Senior was to be at the address at about midday but that he was not present as arranged.  At 12:53:43 Mr Senior sent a text to Mr Kupkovic saying that he was “Leavin town in 10 bro” and at 14:26:11 he was  “headin  [Mr Kupkovic’s]  way”.    At  18:00:23  Mr Kupkovic  sent  a  text  to Mr Senior “Where are you bro” to which Mr Senior replied “in the bunnings car park headin bak now”.

[20]     Crown counsel submitted that it was open to the jury to draw an inference from Mr Senior’s 18:00:23 text that he had purchased from Bunnings something required for the manufacture of methamphetamine and had delivered it to Mr Kupkovic who had in turn used it in such manufacture.

[21]     In my view no properly directed jury could draw any such inference from Mr

Senior’s text.

Result

[22]     For the reasons given, I discharged Mr Senior pursuant to s 347 CA on counts

1, 2 and 5.

..................................................................

M Peters J